Accountability for Torture: Europe Vs. United States

The United States Supreme Court continues to close its doors to victims of the CIA's extraordinary rendition program. This week, the court declined to review Maher Arar's case, just as it did in 2007 for Khaled El-Masri. But Europe's top human rights court remains open for justice.

El-Masri, a German national and innocent victim of a joint U.S.-Macedonian rendition operation, has brought his case before the European Court of Human Rights. El-Masri was seized while on holiday in December 2003 by Macedonian security officers acting at the request of the United States. He was detained incommunicado and abused in Macedonian custody for 23 days. His numerous requests to see a German consular official fell on deaf ears. He was repeatedly interrogated and told to admit that he was a member of Al Qaeda.

On January 23, 2004, El-Masri was handcuffed, blindfolded, driven to Skopje airport, and handed over to the CIA. After subjecting him to further abuse, the CIA flew him to Kabul, Afghanistan, and kept him in a secret prison known as the "Salt Pit" for four months.

He was held in a small, dark, and dirty concrete cell, slammed into walls, kicked and beaten. He was denied medical treatment. He was never charged, brought before a judge, or given access to his family or German government representatives. On May 24, 2004, he was flown, blindfolded, ear-muffed, and chained to his seat, to Albania, where he was abandoned on the side of the road without explanation.

His life shattered, El-Masri has sought justice now for almost six years.

When he brought his case to the United States courts, the U.S. government invoked the "state secrets privilege" and got his case dismissed.

The United States government has never publicly admitted its error in El-Masri's rendition. In 2005, German Chancellor Angela Merkel stated at a press conference -- with then-Secretary of State Condoleezza Rice standing by her side -- that the United States government accepted that it had made a mistake. But this falls far short of a public statement from the U.S. acknowledging its role in El-Masri's horrific treatment.

The United States is not yet off the hook. While El-Masri's lawsuit before the European Court of Human Rights is against the government of Macedonia, his legal claims are inextricably linked to the U.S. government's role in his rendition.

The lawsuit claims that the Macedonian government breached its obligation to protect El-Masri from ill-treatment at the hands of the United States, both at the point of transfer to CIA custody and in Afghanistan. While the European Court may not technically adjudicate over the United States (because it is not party to the European Convention on Human Rights), the court is required to assess -- for the purpose of determining Macedonia's liability in this case -- whether the United States's treatment of El Masri was contrary to European Convention standards. In light of its observer status at the Council of Europe, the United States is expected to cooperate with the Council and conform to human rights principles and the rule of law. A court finding that Macedonia illegally exposed El-Masri to abuse in U.S. custody would be a public embarrassment for the U.S.

The movement for accountability is gaining momentum in Europe. Just last month, the new UK government announced plans for an inquiry into torture and rendition. While the United States may not want to acknowledge how it tore El-Masri's life apart, European pressure may well compel the U.S. to finally come clean.

Amrit Singh is Senior Legal Officer for National Security & Counterterrorism with the Open Society Justice Initiative and co-author of Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond (Columbia University Press, 2007).